Two weeks ago, various newspapers reported the Supreme Courts 9-5 decision in the Estrada vs.

Escritor case, a landmark decision involving the Constitutional freedom of religion. The Court (even in its in interim resolution last August 2003) ruled that Escritor, a court interpreter at the Las Pias Regional Trial Court Branch 253, could not be dismissed from the government service for disgraceful and immoral conduct on the basis of a valid exercise of her freedom of religion. Admittedly, Escritor was living in with Luciano Quilapio Jr (also married to another person) without the benefit of marriage. But her church (the Jehovahs Witnesses) had recognized her relationship and allowed them to have marital relations, since her legal husband had abandoned her. In a JW church document known as Declaration of Pledging Faithfulness entered into by Escritor and Quilapio, they bound themselves to have their union legally recognized should the opportunity arise. Moreover, as investigation by the Office of the Court Administrator showed, such a practice of the JW had extensive theological underpinnings and was a long time, widely held practice. It was not simply a device or scheme that Escritor resorted to in order to evade administrative liability. Please take note that the JW, in the defense of its doctrines and practices, has had a long history of butting heads with the State. In 1956, for example, the Supreme Court ruled against the JW in the Gerona case, where JW members enrolled in public schools were not granted exemption from attending flag ceremonies and singing the national anthem. Yet the JW persisted in challenging this ruling. Finally, after 39 long years, in 1995, the Supreme Court in the case of Ebralinag vs. Division Superintendent of Cebu, recognized the right of the JW members not to participate in the flag ceremonies and in the singing of the national anthem.

Please also take note that being a Baptist, I do not subscribe to the JW teachings and practices; I hope only to clarify what the Supreme Court's ruling is in the Escritor case. Flawed understanding of the Escritor ruling in media reports The problem is, some newspaper reporters and editors have misunderstood the SC ruling. For example, one headline in a business newspaper stated, SC ruling favors live-in setup if church-blessed. The lead went on to say, The Supreme Court virtually gave its blessing to living-in couples when it issued a landmark decision declaring that they cannot be punished for having such an arrangement if it does not clash with their religious beliefs. "Repercussions" of the Supreme Court ruling Some people I have talked to (and who have read the skewed news reports) are disgusted with the SC ruling, saying that its another assault on the institution of marriage, encouraging people to simply live in without the benefit of marriage, in the name of religious freedom. (In a previous post, I mentioned a DSWD finding that 40% of couples in the CALABARZON area are merely living in.) They say that now, various religious groups will come up with doctrines, documents and practices similar to the JWs Declaration of Pledging Faithfulness in order to accommodate their own members.One pastor (from the Visayas region) I talked to last year, mentioned the difficulty of one couple in his church. They are new converts, living in together as husband and wife, but could not have their previous marriages annulled because of the prohibitive legal expenses. The pastor mentioned that he has been thinking of just conducting an ecclesiastical marriage so that this couple and the church could say that in the eyes of God, they are husband and wife, even though legally, they are married to other persons.

Justice Consuelo Ynares-Santiago, who voted against the majority ruling, states in her dissenting opinion (see below) the possible repercussion that each church or religion could become a republic unto itself. Setting the record straight on the Escritor ruling The legal expert on GMA-7s early morning show Unang Hirit about a week ago has explained quite clearly what this SC decision is all about. (My congratulations to her for such a clear explanation despite the very limited time allotted to her. I was riding on a G-Liner bus equipped with a TV set, on my way from Pasig/Ortigas to the NLRC in Quezon City when her portion came on. Atty. Roldan, I think her name is, used to do the late night news for RPN-9, if I'm not mistaken.) She clarified that: [1] As a general rule, people in live-in relationships and whose marriages to other parties have not been annulled or declared null and void, can and will be held criminally liable for adultery, concubinage, marital infidelity, etc. under the Revised Penal Code and other special laws like RA 9262. [2] If these people in live-in relationships are in the government service, then they can be charged administratively under the Administrative Code of 1987. [3] The Escritor doctrine established not a general rule but an exception to the general rule on the basis of a valid exercise of the Constitutional freedom of religion. As the Supreme Court clarified, It does not mean that the Court would grant exemptions everytime a free exercise of religion comes before it. Restricted application of the Supreme Court's ruling

As the Supreme Court in the dispositive (concluding) portion of its June 2006 decision stated, Thus, we find that in this particular case and under these distinct circumstances, respondent Escritors conjugal arrangement cannot be penalized as she has made out a case for exemption from the law based on her fundamental right to freedom of religion. The Court recognizes that state interests must be upheld in order that freedoms - including religious freedom - may be enjoyed. In the area of religious exercise as a preferred freedom, however, man stands accountable to an authority higher than the state, and so the state interest sought to be upheld must be so compelling that its violation will erode the very fabric of the state that will also protect the freedom. In the absence of a showing that such state interest exists, man must be allowed to subscribe to the Infinite.(emphasis by boldfacing supplied) A word of caution to other live-in couples and to other religions Thus, any pastor, church or members of a religious sect who might draw some unfounded conclusions and consequently act according to the way some media outlets have reported the Escritor case, should be forewarned. Any pastor who obtains a license from the State to solemnize marriages is bound by the laws of the Philippines. If he solemnizes a marriage without observing the legal requirements, he could be charged criminally with violation of the Revised Penal Code in performing an illegal marriage. If he claims freedom of religion and the Escritor ruling as his defense, hed better make sure that his case has similar antecedents (background) as that of the Escritor case. As lawyers are fond of saying, his case must be on all fours with the Escritor case. I strongly recommend that pastors, Bible students and church members read the complete text of the Supreme Courts interim decision in August 2003 and its final decision released this June 2006. The decision is a difficult read even for law students but the

time and effort are well worth it. But from my own perspective, and without going into the merits or the intricacies of the Escritor ruling, I would always be in favor of the least interference or no excessive entanglement with religion by the State. This is the so-called Lemon Test in American jurisprudence. In the Escritor case, the Supreme Court used the compelling state interest test from a benevolent neutrality stance. That is, the Court entertained the possibility that Escritors claim to religious freedom could warrant carving out an exception to the Civil Service law, unless the government succeed in demonstrating a more compelling state interest. The "compelling state interest test from a benevolent neutrality stance" In its 2003 interim decision, the Supreme Court explained how the compelling state interest test from a benevolent neutrality stance was to be applied: In applying the test, the first inquiry is whether respondents right to religious freedom has been burdened. There is no doubt that choosing between keeping her employment and abandoning her religious belief and practice and family on the one hand, and giving up her employment and keeping her religious practice and family on the other hand, puts a burden on her free exercise of religion. xxx The second step is to ascertain respondents sincerity in her religious belief. Respondent appears to be sincere in her religious belief and practice and is not merely using the Declaration of Pledging Faithfulness to avoid punishment for immorality. She did not secure the Declaration only after entering the judiciary where the moral standards are strict and defined, much less only after an administrative case for immorality was filed against her. The Declaration was issued to her by her congregation after ten years of

living together with her partner, Quilapio, and ten years before she entered the judiciary. Ministers from her congregation testified on the authenticity of the Jehovahs Witnesses practice of securing a Declaration and their doctrinal or scriptural basis for such a practice. As the ministers testified, the Declaration is not whimsically issued to avoid legal punishment for illicit conduct but to make the union of their members under respondents circumstances honorable before God and men. xxx Respondents request for exemption from the flag ceremony shows her sincerity in practicing the Jehovahs Witnesses beliefs and not using them merely to escape punishment. She is a practicing member of the Jehovahs Witnesses and the Jehovah ministers testified that she is a member in good standing. In its 2003 decision, the Supreme Court remanded the case to the Office of the Court Administrator. The Solicitor General was ordered to intervene in the case and be given the opportunity (a) to examine the sincerity and centrality of Escritors claimed religious belief and practice; (b) to present evidence on the states compelling interest to override Escritors religious belief and practice; and (c) to show that the means the state adopts in pursuing its interest is the least restrictive to Escritors religious freedom. Well, as things turned out from 2003, the OSG failed to prove, in the minds of the nine justices who voted in favor of the Escritor ruling, any compelling interest of the State that could have overridden Escritors exercise of her religion. Dissenting opinions in the Escritor case; Muslims exemption from prosecution for bigamy Supreme Court Justice Antonio Carpio, voting against the majority in the Escritor case, explained in his dissenting opinionthat: The majority opinion will make every religion a separate republic, making religion a haven for criminal conduct that otherwise would

be punishable under the law of the land. Today concubinage, tomorrow bigamy, will enjoy protection from criminal sanction under the new doctrine foisted by the majority opinion. Associate Justice Consuelo Ynares-Santiago, in her separate dissenting opinion, stated that Escritor should have been declared guilty of immorality and disgraceful conduct and subsequently suspended for six months without pay. Justice Santiago stated in her opinion, "The Court cannot be the instrument by which one group of people is exempted from the effects of these laws just because they belong to a particular religion. Moreover, it is the sworn mandate of the Court to supervise the conduct of an employee of the judiciary, and it must do so with an even hand regardless of her religious affiliation." I have read the 2003 interim decision of the Supreme Court in the Escritor case and there it was mentioned that under Art. 180 of P.D. No. 1083, otherwise known as the Code of Muslim Personal Laws of the Philippines, Muslims have been expressly exempted from the operation of bigamy laws of the Philippines. This provision of law has never been challenged in terms of violation of the establishment of religion clause of the 1987 Constitution. In the light of the Escritor ruling however, if and when such a case is brought before the Supreme Court, my guess is that the said provision of law will be declared as constitutional. Unless, in view of the vigorous dissent by the five justices who voted against the Escritor ruling (namely, Justices Carpio, Consuelo YnaresSantiago, Romeo Callejo, Conchita Carpio Morales and Chief Justice Artemio Panganiban), the Ecritor ruling could later on be overturned. Is this possible? Well, from the introductory portion of the interim 2003 decision as quoted below, from Justice Punos ponencia, the issue of freedom of religion has had a long and convoluted history. Anything is possible.

Anyway, heres the introductory part of Justice Punos compellingly written ponencia in the 2003 interim decision in the Escritor case: "The case at bar takes us to a most difficult area of constitutional law where man stands accountable to an authority higher than the state. To be held on balance are the states interest and the respondents religious freedom. In this highly sensitive area of law, the task of balancing between authority and liberty is most delicate because to the person invoking religious freedom, the consequences of the case are not only temporal. The task is not made easier by the American origin of our religion clauses and the wealth of U.S. jurisprudence on these clauses for in the United States, there is probably no more intensely controverted area of constitutional interpretation than the religion clauses. The U.S. Supreme Court itself has acknowledged that in this constitutional area, there is considerable internal inconsistency in the opinions of the Court. As stated by a professor of law, (i)t is by now notorious that legal doctrines and judicial decisions in the area of religious freedom are in serious disarray. In perhaps no other area of constitutional law have confusion and inconsistency achieved such undisputed sovereignty. Nevertheless, this thicket is the only path to take to conquer the mountain of a legal problem the case at bar presents. Both the penetrating and panoramic view this climb would provide will largely chart the course of religious freedom in Philippine jurisdiction. That the religious freedom question arose in an administrative case involving only one person does not alter the paramount importance of the question for the constitution commands the positive protection by government of religious freedom - not only for a minority, however small - not only for a majority, however large - but for each of us. Liberty and authority; freedom and responsibility; law and grace this reminds me of that famous chapter (The Grand Inquisitor) in Fyodor Dostoyevskis novel The Brothers Karamazov. But thats for another post

ESTRADA v. ESCRITOR AMNo. P021651, August4, 2003, June20, 2006 FACTS: Escritor, a member of the Jehovahs Witness, was charged for immoral conduct for co habiting with a man w i t h o u t t h e b e n e f i t o f a marriage, their relationship bearing a child. She secured a Declaration of P l e d g i n g Faithfulness, indicating their churchs approval of their union in accordance with the beliefs of the Jehovahs Witness. ISSUES: Whether or not Escritor may be sanctioned in light of the Free Exercise clause. RULING: No. The state has the burden of satisfying the compelling state interest test to justify any possible sanction to be imposed upon Escritor. This test involves three steps 1)

her

2)

ESTRADA VS. ESCRITOR [492 SCRA 1 ; AM NO P-02-1651; 22 JUN 2006] Facts: Escritor is a court interpreter since 1999 in the RTC of Las Pinas City. She has been living with Quilapio, a man who is not her husband, for more than twenty five years and had a son with him as well. Respondents husband died a year before she entered into the judiciary while Quilapio is still legally married to another woman. Complainant Estrada requested the Judge of said RTC to investigate respondent. According to complainant, respondent should not be allowed to remain employed therein for it will appear as if the court allows such act. Respondent claims that their conjugal arrangement is permitted by her religionthe Jehovahs Witnesses and the Watch Tower and the Bible Trace Society. They allegedly have a Declaration of Pledging Faithfulness under the approval of their congregation. Such a declaration is effective when legal impediments render it impossible for a couple to legalize their union. Issue: Whether or Not the State could penalize respondent for such conjugal arrangement. Held: No. The State could not penalize respondent for she isexercising her right to freedom of religion. The free exercise of religion is specifically articulated as one of the fundamental rights in our Constitution. As Jefferson put it, it is the most inalienable and sacred of human rights. The States interest in enforcing its prohibition cannot be merely abstract or symbolic in order to be sufficiently compelling to outweigh a free exercise claim. In the case at bar, the State has not evinced any concrete interest in enforcing the concubinage or bigamy charges against respondent or her partner. Thus the States interest only amounts to the symbolic preservation of an unenforced prohibition. Furthermore, a distinction between public and secular

morality and religious morality should be kept in mind. The jurisdiction of the Court extends only to public and secular morality. The Court further states that our Constitution adheres the benevolent neutrality approach that gives room for accommodation of religiousexercises as required by the Free Exercise Clause. This benevolent neutrality could allow for accommodation of morality based on religion, provided it does not offend compelling state interests. Assuming arguendo that the OSG has proved a compelling state interest, it has to further demonstrate that the state has used the least intrusive means possible so that the free exercise is not infringed any more than necessary to achieve the legitimate goal of the state. Thus the conjugal arrangement cannot be penalized for it constitutes an exemption to the law based on her right to freedom of religion.